Shri Gurpreet Singh, BIKANER V. ITO, BIKANER

ITA 50/JODH/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54381 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 02-12-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 28-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R N JANGID
• Section: 143(3); 10(14)

Judgement Text

1 ITA 50-10 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH JODHPUR. ( BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ) ITA NO. 50/JODH/2010 ASSTT. YEAR : 2005-06. SHRI GURPREET SINGH, VS. THE INCOME-TAX OFFICER , 12-A, SADULGANJ, BIKANER. WARD 1(3), BIKANER. PAN- AEMPS 5174H (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.N. JANGID RESPONDENT BY : SHRI MAHESH KUMAR DATE OF HEARING : 02.12.2011. DATE OF PRONOUNCEMENT : 09.12.2011. ORDER DATED : 09/12/2011. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY ASSESSEE AGAINST CANCELLATION OF LEVY OF PENALTY OF RS. 1,43,480/- UNDER SECTION 271(1)(C) OF THE IT ACT. 2. DURING THE ASSESSMENT PROCEEDINGS UNDER SECTION 143(3) CLAIM FOR DEDUCTION UNDER SECTION 10(13) AND 10(14) WAS DISALLOWED. PEN ALTY PROCEEDINGS UNDER SECTION 271(1)(C) WAS ALSO INITIATED. APPLICATION MADE UND ER SECTION 264 WAS ALSO REJECTED BY LD. CIT BIKANER. THE ASSESSING OFFICER ISSUED SHOW CAU SE NOTICE FOR LEVYING PENALTY. EXPLANATION WAS FILED. HOWEVER, THE SAME WAS NOT FO UND SATISFACTORY. ACCORDINGLY, THE ASSESSING OFFICER LEVIED A PENALTY OF RS. 1,43,480/ - UNDER SECTION 271(1)(C). THE LD. CIT (A) HAS ALSO CONFIRMED THE SAME. 2 3. THE CONTENTION RAISED BEFORE THE LOWER AUTHORITI ES, WERE REITERATED BY LD. COUNSEL OF THE ASSESSEE. IT WAS FURTHER SUBMITTED THAT ON IDENTICAL FACTS, THE DISALLOWANCE WAS MADE FOR SUBSEQUENT YEAR ALSO. ON APPEAL BEFORE LD . CIT (A), DISALLOWANCE UNDER SECTION 10(13) AND 10(14) WAS ALLOWED BY LD. CIT (A). FACT S AND CIRCUMSTANCES ARE IDENTICAL FOR THE UNDER CONSIDERATION. HOWEVER, DUE TO PAUCITY OF TIME, THE ASSESSEE COULD NOT GATHER THE DETAILS AND, THEREFORE, HE COULD NOT FILE THE D EDUCTION CERTIFICATE. IT WAS FURTHER SUBMITTED THAT THIS WAS A BONA FIDE INTENTION. ASS ESSEE IS A SERVICE CLASS PERSON WHO PARTLY LIVES IN MUMBAI AND PARTLY IN OFF SHORE. TH E DEDUCTIONS ARE ALLOWABLE. ACCORDINGLY, IT WAS SUBMITTED THAT PENALTY LEVIED B Y ASSESSING OFFICER WHICH IS CONFIRMED BY LD. CIT (A) IS NOT JUSTIFIED. RELIANC E WAS PLACED ON THE DECISION IN CASE OF DHARAMPAL PREMCHAND LTD., 329 ITR 572 (DEL.) AND IN CASE OF DEVSONS PVT. LTD., 329 ITR 483 (DEL.), COPIES OF THE JUDGMENTS WERE ALSO F ILED. RELIANCE WAS PLACED IN CASE OF ORIENTAL POWER CABLE LTD., 303 ITR 49 (RAJ.). 4. ON THE OTHER HAND, THE LD. D/R PLACED RELIANCE O N THE ORDERS OF THE ASSESSING OFFICER AND LD. CIT (A). 5. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING T HE MATERIAL ON RECORD, WE FIND THAT ASSESSEE DESERVES TO SUCCEED IN HIS APPEAL. I T IS SEEN THAT ON IDENTICAL FACTS THE DISALLOWANCE UNDER SECTION 10(13) AND 10(14) WERE M ADE FOR SUBSEQUENT YEAR I.E. 2006- 07. ASSESSEE FILED APPEAL BEFORE LD. CIT (A) WHO W AS PLEASED TO DELETE BOTH THE DISALLOWANCES. COPY OF ORDER IS PLACED IN THE PAPER BOOK. HOWEVER, FOR THE YEAR UNDER CONSIDERATION, THE ASSESSEE COULD NOT LEAD SUFFICIE NT MATERIAL TO CLAIM DEDUCTION AND HE IS A SALARIED PERSON. ONE OF THE OBJECTIONS OF THE AS SESSING OFFICER IS THAT LANDLORD RESIDES IN RAJASTHAN WHEREAS RENT IS PAID IN MUMBAI AND NO RECEIPT HAS BEEN FILED. IT WAS THE 3 CASE OF THE ASSESSEE THAT HE COULD NOT OBTAIN THE R ECEIPT FROM RAJASTHAN. HOWEVER, THE CLAIM OF THE ASSESSEE WAS BONA FIDE AND THERE IS NO DISPUTE THAT RENT HAS BEEN PAID AND WHICH IS ALLOWABLE DEDUCTION. SIMILAR IS IN RESPEC T TO OTHER EXEMPTIONS CLAIMED BY ASSESSEE I.E. ON ACCOUNT OF CONVEYANCE AND MAINTENA NCE AND OFF SHORE ALLOWANCE WHICH ARE EXEMPT UNDER SECTION 10(14) OF THE IT ACT. THE REFORE, IN OUR CONSIDERED VIEW, THE ASSESSEE WAS UNDER BONA FIDE BELIEF AND COULD NOT O BTAINED THE REQUIRED DETAILS. HOWEVER, ASSESSEE HAS NOT CONCEALED ANY PARTICULARS OF INCOM E TO EVADE TAX. THE BONA FIDE INTENTION IS PROVED FROM THE FACT THAT IN SUBSEQUEN T YEAR THE ASSESSEE FILED REQUIRED DETAILS AND DISALLOWANCES MADE UNDER SECTION 10(13) AND 10( 14) WERE DELETED BY LD. CIT (A). IN VIEW OF THESE FACTS AND CIRCUMSTANCES, WE HOLD THAT LEVY OF PENALTY WAS NOT JUSTIFIED. ACCORDINGLY THE SAME IS CANCELLED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . 7. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 09. 12.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JODHPUR, COPY FORWARDED TO :- SHRI GURPREET SINGH, BIKANER. THE ITO WARD 1(3), BIKANER. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 50/JODH/2010) BY ORDER, AR ITAT JODHPUR. 4